Internal Administrative Act Study

Where there is a right, there is a remedy, when the legitimate rights and interests ofcitizens have been infringed, the most force weapons is a lawsuit. However, in theAdministrative Procedure Law of China, due to internal administrative acts can not been bringa lawsuit, so that the legitimate rights and interests of the civil servants are excluded from thescope of judicial protection outside. The Civil Service Law and other laws for civil servantsthe right to relief have been provided, but these provisions are all internal oversight, what isbuilt on the administrative organs of self-discipline, lack of openness, fairness and normative,because of constrained and influenced by the executive power, it is difficult to implementfully and effectively monitor the internal administrative acts. However, some important rightsof the civil servants, what is affected by the internal administrative acts, is more importantthan the property rights of the general power relations. For the latter, the AdministrativeProcedure Law gives relative or other interested parties by way of administrative proceedingsto protect their legitimate rights and interests, but under the special power relationship,Administrative Procedure Law does not protect legitimate rights and interests of civil servants,that is a defect.The special theory of power relations is produced in Germany in the19th century,introduced from Germany to other countries and regions in the world, and had an importantimpact to Administrative Litigation Law in China. Because of The special theory of powerrelations, such as hiring, assessment, appointment, removal, rewards and punishments, allbelong to the special powers acts. This behavior is due to the special legal relationship hascoercive powers, so civil servants can only obey. As the results, the internal administrative actdoes not apply the principle of legal reservation, and rights holders can not seek judicialprotection and relief. However, the appointment, removal, appraisal, disposition, termination,retirement decisions of civil servants, it comes to the most basic rights of government workers,such a serious impact on the behavior of the fundamental rights of citizens, if only internallyby the executive to be decided, and not given their right to sue, and the fundamental rights ofcivil servants is really difficult to get protection. As a result, in the world, part of the internaladministrative acts has been included in the scope of judicial review, and was graduallyexpanding.This paper consists of four parts. First, from the really case, by the distinction between internal administrative acts and external administrative act, analysis the internal judicialdetermination of the administrative act. Second, discuss the special theory of power relations,and pointed out its profound impact on the legislation of the Administrative Procedure Law inChina. Third, discuss the change of the special theory of power relations, Protection of therights and interests of citizens, the rule of law for national construction, pointed internaladministrative action should have suability. Fourth, considering Internal administrative natureof the act and the protection of the legitimate rights and interests, Analysis the internaladministrative action lawsuit range，and build a pre-procedure to achieve a balance betweenthe protection of the legitimate rights of Civil servants and administrative efficiency.